Citation Nr: 0104676
Decision Date: 02/15/01 Archive Date: 02/20/01
DOCKET NO. 97-22 565 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in San Juan,
the Commonwealth of Puerto Rico
THE ISSUE
Entitlement to an increased original disability rating for
major depression, currently rated as 50 percent disabling.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESSES AT HEARING ON APPEAL
Appellant and spouse.
ATTORNEY FOR THE BOARD
C. Allen, Associate Counsel
INTRODUCTION
The veteran served on active duty from January 1974 to
January 1976 and from September 1982 to May 1991.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an April 1997 rating decision of the
Department of Veterans Affairs (VA), Regional Office (RO), in
San Juan, the Commonwealth of Puerto Rico, which granted a
claim by the veteran seeking entitlement to service
connection for a psychiatric disorder, assigning a 30 percent
disability rating. In a March 1999 decision, the RO assigned
a 50 percent original schedular rating for this disability.
REMAND
Following a VA psychiatric examination in January 1999, the
veteran underwent a VA physical examination in November 1999.
It was noted that a psychiatric evaluation was requested, but
there is no record of one being performed.
There has been a significant change in the law during the
pendency of this appeal. On November 9, 2000, President
Clinton signed into law the Veterans Claims Assistance Act of
2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000). Among
other things, this law eliminates the concept of a well-
grounded claim, redefines the obligations of the VA with
respect to the duty to assist, and supercedes the decision of
the United States Court of Appeals for Veterans Claims in
Morton v. West, 12 Vet. App. 477 (1999), withdrawn sub nom.
Morton v. Gober, No. 96-1517 (U.S. Vet. App. Nov. 6, 2000)
(per curiam order), which had held that VA cannot assist in
the development of a claim that is not well grounded. This
change in the law is applicable to all claims filed on or
after the date of enactment of the Veterans Claims Assistance
Act of 2000, or filed before the date of enactment and not
yet final as of that date. Veterans Claims Assistance Act of
2000, Pub. L. No. 106-475, § 7, subpart (a), 114 Stat. 2096
(2000); see Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991)
(Where the law or regulation changes after a claim has been
filed, but before the administrative or judicial appeal
process has been conducted, the version of the law or
regulation most favorable to the veteran shall be applied.).
Because of the change in the law brought about by the
Veterans Claims Assistance Act of 2000, a remand in this case
is required for compliance with the notice and duty to assist
provisions contained in the new law. See Veterans Claims
Assistance Act of 2000, Pub. L. No. 106-475, §§ 3-4, 114
Stat. 2096 (2000) (to be codified as amended at 38 U.S.C.
§§ 5102, 5103, 5103A, and 5107).
In light of the above, this case must be remanded back to the
RO. See 38 C.F.R. § 19.9 (2000) ("If further evidence or
clarification of the evidence or correction of a procedural
defect is essential for a proper appellate decision," the
Board is required to remand the case back to the agency of
original jurisdiction.) (emphasis added).
The Board also finds that the veteran submitted a claim
seeking entitlement to a total disability rating for
compensation purposes due to individual unemployability in
October 1999. That claim was denied by the RO in a July 2000
decision. The veteran properly disagreed with this
determination in a September 2000 Statement in Support of
Claim, VA Form 21-4138. The Board finds that this is an
adequate, timely notice of disagreement and, thus, the
Board's jurisdiction has been triggered. Therefore, this
claim must be REMANDED, as per Manlincon v. West, 12 Vet.
App. 238 (1999), so that the RO can issue a statement of the
case on the underlying claim. See 38 U.S.C.A. § 7105(a)
(West 1991) (Appellate review will be initiated by a Notice
of Disagreement and completed by a Substantive Appeal after a
Statement of the Case is furnished.); 38 C.F.R. §§ 20.200,
20.201 (2000).
Accordingly, this case is REMANDED for the following actions:
1. The veteran should be requested to
identify all sources of treatment
received for his psychiatric disability,
and to also furnish signed authorizations
for release to the VA of private medical
records in connection with each non-VA
source he identifies. Copies of the
medical records from all sources he
identifies, including VA records (not
already associated herein), should then
be requested. All records obtained
should be added to the claims folder.
2. Thereafter, the RO should schedule
the veteran for VA mental disorders
examination to determine the nature and
severity of his major depression. The
claims folder and a copy of this remand
should be made available to the examiner
for review prior to the examination.
The examiner is requested to determine
all current manifestations associated
with the veteran's psychiatric disorder
and to comment on their severity. The
examination should comply with DSM-IV and
should specifically address the degree of
social and occupational impairment caused
by the service-connected psychiatric
disorder. The examiner should determine
whether the veteran's impairment causes
difficulty with establishing and
maintaining work and social
relationships, causes impairment in most
social and occupational areas, or causes
total impairment. Specific evaluation of
the veteran's behavior, conversation,
mood, anxiety, memory, sleep patterns,
judgment, insight, affect, speech,
thought processes, orientation, and other
rating criteria outlined in 38 C.F.R.
§ 4.130, Diagnostic Codes 9434, 9440
(2000), should be accomplished. The
examiner should also determine whether
the veteran's ability to obtain and
maintain effective relationships with
others is considerably, severely, or
totally impaired pursuant to 38 C.F.R.
§ 4.132, Diagnostic Code 9411 (1996).
The examiner should also provide a
current Global Assessment of Functioning
score.
All necessary tests should be conducted,
and the examiner should review the
results of any testing prior to
completion of the report. All findings
should be made part of an examination
report, a copy of which must be made part
of the claims folder.
3. The RO should review the claims file
and ensure that all other notification
and development action required by the
Veterans Claims Assistance Act of 2000 is
completed. In particular, the RO should
ensure that the new notification
requirements and development procedures
contained in sections 3 and 4 of the Act
(to be codified as amended at 38 U.S.C.
§§ 5102, 5103, 5103A, and 5107), are
fully complied with and satisfied. For
further guidance on the processing of
this case in light of the changes in the
law, the RO should refer to VBA Fast
Letters 00-87 (November 17, 2000), 00-92
(December 13, 2000), and 01-02 (January
9, 2001), as well as any pertinent formal
or informal guidance that is subsequently
provided by VA, including, among others
things, final regulations and General
Counsel precedent opinions. Any binding
and pertinent court decisions that are
subsequently issued also should be
considered.
4. Thereafter, the RO should
readjudicate the claims of an increased
rating for psychiatric disability and a
total disability rating based on
individual unemployability. If any
action remains adverse to the veteran, he
and his representative should be
furnished a Supplemental Statement of the
Case which summarizes the pertinent
evidence, fully cites the applicable
legal provisions, and reflects detailed
reasons and bases for the decision(s)
reached. The veteran should be advised
that he may perfect his appeal of the
total disability rating based on
individual unemployability issue by
filing a substantive appeal within 60
days of the issuance of the Statement of
the Case, see 38 C.F.R. § 20.302(b)
(2000), or alternatively, within the time
proscribed by law to perfect an appeal to
the Board.
Thereafter, the veteran and his representative should be
afforded the opportunity to respond thereto. The case should
then be returned to the Board for further appellate
consideration, if otherwise in order. By this REMAND the
Board intimates no opinion, either factual or legal, as to
the ultimate determination warranted in this case. The
veteran is advised that failure to cooperate by reporting for
VA examination may result in the denial of his claim.
38 C.F.R. § 3.655 (2000).
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 2000) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV,
directs the ROs to provide expeditious handling of all cases
that have been remanded by the Board and the Court. See M21-
1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
THOMAS J. DANNAHER
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (2000).